LMN & Anor, R (on the application of) v Secretary of State for Work and Pensions

At a permission or viability stage, the threshold is modest. A claim should proceed where it is properly arguable and has a realistic prospect of success. The court need not determine the merits or resolve competing legal arguments at that stage. A discretionary bar should not prevent a claim proceeding where the challenge concerns an ongoing state of affairs, the issues are important, and the impugned provision continues to affect the claimant.

Where delay is explained by the pursuit of alternative appeal rights, subsequent factual developments and continuing effects of the challenged measure, time may appropriately be extended. If permission is resisted unsuccessfully and the claimant succeeds on the issues decided at the preliminary hearing, the appropriate order may be the claimant’s costs in the case.

These were judicial review claims by LMN and EFG concerning the application of the two-child provision in universal credit to previous children falling within the non-consensual conception exception. The claims challenged the retained requirement that the child be the latest child, relying on human-rights compatibility, justified differentiation or non-differentiation, and common-law reasonableness.

LMN’s youngest child had subsequently been recognised as falling within the exception, but benefits had not been backdated. EFG’s claim remained live. The claims followed earlier tribunal proceedings and were issued in November 2023. The court considered viability, academicity, delay and costs before directing that both claims proceed to a substantive hearing.

1. Viability. The claims crossed the threshold for a substantive hearing. The threshold was modest: the claims were properly arguable and had a realistic prospect of success. The Secretary of State had arguable lines of defence, but there was no knockout point and no discretionary bar preventing the claims from proceeding.
2. Academic question. LMN’s claim was not academic merely because the youngest child had been recognised as within the non-consensual conception exception. The impugned provision had applied to LMN and benefits had not been backdated. EFG’s claim was plainly not academic.
3. Delay. Time was extended. LMN had reasonably pursued tribunal appeal rights until June 2023, EFG’s operative decision was made in July 2023, and both claims were issued within a period explained by witness evidence and correspondence. The challenged provision continued to bite as an ongoing state of affairs. The importance of the issues also supported allowing the claims to proceed.
4. Substantive issues. The court did not decide the merits. It identified arguable questions concerning the nature of family-size choice in cases involving rape or controlling or coercive behaviour, public expenditure and state responsibility, the significance of previous children, and whether the latest-child restriction in the non-consensual conception exception could be justified under human-rights standards or common law.
5. Costs. The claimants succeeded on the issues at the hearing. The order was “Claimants’ costs in the case”, so they were not exposed to liability for the hearing’s costs if unsuccessful overall.

This was a first-instance judicial review permission-renewal decision. The judgment states that LMN had a stayed appeal to the Court of Appeal arising from earlier tribunal proceedings, but gives no citation for that appeal.